ARTICLE THE FAILURE OF IMMIGRATION APPEALS DAVID HAUSMAN

Transcription

1 ARTICLE THE FAILURE OF IMMIGRATION APPEALS DAVID HAUSMAN Within the same immigration court, some immigration judges are up to three times more likely than their colleagues to order immigrants deported. Theories of appeal and of administrative adjudication imply that appeals processes should increase consistency. This Article uses an internal administrative database, obtained by Freedom of Information Act request, to demonstrate that the appeals process for the immigration courts a system of administrative adjudication that makes as many decisions as the federal courts does not promote uniformity. The removal orders of harsher immigration judges are no more likely to be reversed on appeal by the Board of Immigration Appeals or federal courts of appeals. Why? I find that the Board of Immigration Appeals and the courts of appeals fail to promote uniformity across immigration judges because they review an unrepresentative sample of cases. Harsher immigration judges more often order immigrants deported early in their proceedings, before they have found a lawyer or filed an application for relief. Immigrants without lawyers rarely appeal. The Board therefore rarely reviews the removal orders of immigrants who might have meritorious claims but who are assigned harsh judges and lack lawyers at the beginning of their proceedings. These quantitative findings, together with interviews and immigration court observation, lead to three incremental, practical policy recommendations. First, the Board of Immigration Appeals and the courts of appeals should adopt a less deferential standard Ph.D. Candidate in Political Science, Stanford University; J.D., 2015, Stanford University. I would like to thank Stanford Law School and the Stanford Center on Poverty and Inequality for research funds. Many thanks to Farrin Anello, Graeme Blair, Ingrid Eagly, David Engstrom, Justin Grimmer, Daniel Ho, Christopher Hu, Herbert Kritzer, Ken Mayeaux, Bernadette Meyler, Terry Moe, Andrew Powell, Judy Rabinovitz, Jaya Ramji-Nogales, Cristina Rodríguez, Steven Shafer, Justin Simard, Jayashri Srikantiah, Michael Tan, Christopher Walker, Cecillia Wang, Judge Stephen F. Williams, David Zaring, and Emily Zhang for help, comments, and criticism. Special thanks to the Executive Office for Immigration Review FOIA Service Center for its help in obtaining the data. Finally, thanks to Markus Brazill, Jacob Singer, Kaiyi Xie, and the rest of the editors of the University of Pennsylvania Law Review for their extraordinary help and care in the editing process. (1177)

2 1178 University of Pennsylvania Law Review [Vol. 164: 1177 of review of an immigration judge s denial of a request for a continuance to seek representation. Second, the government should take simple steps to make applications for relief easier to fill out. Third, the Board of Immigration Appeals should hear a random sample of cases in addition to those appealed by the litigants. More broadly, these findings offer further reason in addition to basic access-to-justice concerns to support calls for the government to appoint counsel for immigrants in removal proceedings. INTRODUCTION I. UNIFORMITY AND THEORIES OF ADMINISTRATIVE APPEAL II. MEASURING DISPARITY A. Data B. Measuring Harshness III. APPEALS A. The Board of Immigration Appeals B. Courts of Appeals IV. TIME, LAWYERS, AND SELECTION BIAS IN APPEALS A. Time, Encouragement, and Access to Counsel and Relief Providing Time to Access Counsel Influencing Immigrants Litigation Strategy B. Selection Effects on Appeal C Streamlining at the Board of Immigration Appeals V. IMPLICATIONS A. Immigration Adjudications Review of Denials of Continuances Practical Changes to Application for Relief Process Review of Additional Cases Adoption of Government-Provided Counsel for Immigrants B. Administrative Due Process CONCLUSION APPENDIX A. Case Assignment B. Subsample C. Appeals Regressions INTRODUCTION In some immigration courts, the arbitrary assignment of a judge can increase or decrease an immigrant s chance of being deported by up to forty percentage points. These disparities are large not only in absolute terms, but also relative to other well-known judicial disparities. For example, disparities

3 2016] The Failure of Immigration Appeals 1179 in rates of deportation are three times larger, on average, than disparities in federal judges decisions about whether to incarcerate criminals.1 Immigrants2 who are ordered deported by a particularly harsh judge may appeal that judgment to the Board of Immigration Appeals (BIA), and from there to a federal court of appeals.3 One might expect this appeals process to counteract disparities across immigration judges. Does it? If not, why not? To answer these questions, I use a database, obtained by Freedom of Information Act request, that includes records of every immigration court proceeding initiated over the last two decades.4 The database contains information about immigrants nationalities and lawyers, the location of their immigration proceedings, the immigration charges against them, and the applications for relief that they filed. It also tracks success on appeal. The long timespan covered by the data allows cases to be traced from beginning to end, even when a case lasts over ten years, as some do. The data reveal that the BIA is, surprisingly, not more likely to reverse the removal orders of relatively harsher judges (immigration judges who deport more immigrants than their court s average). I argue that this pattern (or lack of one) reflects the fact that judges who hesitate to issue removal orders also allow immigrants far more time to find a lawyer. Some judges allow cases to last up to two years longer, on average, than cases before other judges in the same court. Immigrants who appear before these generous judges are therefore more likely to have a lawyer by the time their case is decided. Because immigrants with a lawyer are far more likely to appeal, cases decided by generous judges are thus more often reviewed and reversed. These findings advance the empirical literature on immigration courts and administrative review. First, the new and comprehensive data set makes it possible to track, for the first time, disparities across judges for all cases across three levels of adjudication immigration courts, the BIA, and courts of appeals. Second, in measuring cross-judge disparities, I consider and account for the lack of pure random assignment of cases to judges. Third, previous empirical scholarship on immigration courts has focused on the subset of 1 See Crystal S. Yang, Have Inter-Judge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence from Booker 32 (Coase Sandor Inst. for Law & Econ., Working Paper No. 662, 2014) (finding that the maximum standard deviation of judges incarceration rates over all periods under study was 2.7 percentage points). 2 For simplicity, I refer to respondents in immigration court as immigrants, even though some such respondents entered the country on nonimmigrant visas. 3 See 8 U.S.C. 1252(a)(5) (2012) ( [A] petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal.... ); Martinez v. Napolitano, 704 F.3d 620, (9th Cir. 2012) (holding that under 1252(a)(5), after an immigration judge orders removal and the BIA affirms, the exclusive way to challenge removal is to petition the appropriate court of appeals). 4 The data set includes just under five million cases.

4 1180 University of Pennsylvania Law Review [Vol. 164: 1177 cases in which an immigrant applies for asylum;5 I show that the random assignment of an immigration judge affects not only case outcomes, but also whether an immigrant applies for asylum or other relief in the first place. Finally, this Article uses detailed date information from the administrative data set, together with court observation and interviews, to offer a novel explanation for the immigration appeals process s failure to increase consistency in immigration judge decisions. More broadly, these findings should influence theoretical scholarship on the effectiveness of administrative and judicial appeals. They highlight the mismatch between the (minimal) inquisitorial procedures available for immigrants without lawyers in immigration court and the adversarial system of immigration appeals, which requires immigrants to initiate a written appeal without guidance from the immigration judge. The result of this mismatch is that immigrants without lawyers almost never appeal. Appellate judges therefore hear an unrepresentative sample of cases and are unable to review immigration judges decisions effectively. The problem of selection bias in appeals is a general one that matters in other types of adjudications as well: whenever some litigants are more likely than others to appeal cases of similar merit, appellate judges hear an unrepresentative sample of cases. I therefore conclude by calling for further research along similar lines in other areas of administrative adjudications. In sum, this Article brings data to the question of when appeals courts can promote uniformity across inferior court judges. The immigration appeals system fails to do so because judges not only decide whether to order immigrants deported but also influence whether immigrants choose to appeal. Part I describes normative theories of appeal and their implication that appeals should promote uniformity across inferior courts judges. Part II introduces a measure of disparities across immigration judges. Disparities in immigration judges removal decisions are more than three times larger than disparities in federal judges decisions about whether to send a convicted criminal to prison.6 Part III shows that the BIA and the federal courts of appeals do little to counteract these disparities: neither the BIA nor the circuit courts are more likely to reverse the decisions of harsher judges when immigrants appeal. By contrast, when the government appeals which it does more than ten times less frequently than immigrants the BIA more often reverses the decisions of generous judges than those of harsher judges. Part IV explains these findings by matching disparities in final relief rates with disparities in case length, as well as disparities in the likelihood that an immigrant has a lawyer. Generous judges are more likely to let cases last longer, and the immigrants appearing before them 5 See, e.g., infra note 37 and accompanying text. 6 See supra note 1 and accompanying text.

5 2016] The Failure of Immigration Appeals 1181 are therefore more likely to find lawyers and crucially to appeal and win on appeal. Part V, finally, draws out the implications of these findings. The Department of Justice could reduce disparities by facilitating applications for relief, providing lawyers to immigrants, and requiring the BIA to review a random sample of cases sua sponte. The courts of appeals could contribute by altering the standard of review for appeals from denials of continuances. Most broadly, these findings offer another reason to think critically about the implications of selection bias on appeal. I. UNIFORMITY AND THEORIES OF ADMINISTRATIVE APPEAL Uniformity is both a goal of appeals processes and an indication that they are functioning properly. The two core rationales for the availability of appeals error correction and lawmaking7 require appeals courts to increase consistency in legal decisions. Normative models of administrative justice carry the same implication for intermediate agency review and, more weakly, for judicial review of administrative adjudications. Together, these theories suggest that appeals processes should make the decisions of inferior court judges more uniform. The failure of immigration appeals to do so is troubling. Why make appeals available at all? First, an appeals court may detect errors made by a trial court. Steven Shavell famously argued that an appeals process may improve error detection by using litigants knowledge about the accuracy of a judicial proceeding: when litigants believe that the outcome of a proceeding is wrong, they are more likely to expend the cost of appeal, since they think they will win.8 An error here means anything that would lead to the reversal of the original decision, including a decision not in line with appeals courts policy preferences. Lewis Kornhauser, for example, built an influential theory of the benefits of judicial hierarchy on the notion that appeals may help a court system reach correct outcomes, where correctness is explicitly defined as uniformity.9 Others have described uniformity as a normatively neutral measure of correctness and as a central element of the rule of law.10 7 See Chad M. Oldfather, Error Correction, 85 IND. L.J. 49, 49 (2010) ( Most depictions of appellate courts suggest that they serve two core functions: the creation and refinement of law and the correction of error. ). 8 See Steven Shavell, The Appeals Process as a Means of Error Correction, 24 J. LEGAL STUD. 379, 387 (1995) ( When the appeals process is optimally employed, disappointed litigants who were the victims of error bring appeals, and those who were not do not bring appeals. ). 9 See Lewis A. Kornhauser, Adjudication by a Resource-Constrained Team: Hierarchy and Precedent in a Judicial System, 68 S. CAL. L. REV. 1605, 1628 (1995) (positing that no matter how one conceives the appellate system s function, promoting uniformity is either the express purpose or a necessary result). 10 See, e.g., Oldfather, supra note 7, at (arguing that uniformity seemingly invokes... the idea that like cases should be treated alike, and... those who are similarly situated ought to be treated similarly and concluding that appellate courts role is to ensure consistency across judges within the same jurisdiction); Jeremy Waldron, Lucky in Your Judge, 9 THEORETICAL INQUIRIES L.

6 1182 University of Pennsylvania Law Review [Vol. 164: 1177 At a minimum, whether an appeals process produces more uniform outcomes is an indicator of whether it successfully corrects errors. In the immigration court system, the lack of greater uniformity after appeals suggests that the BIA and the courts of appeals are not successfully correcting errors. Of course, appeals courts do not only correct errors; they also make law by precedent. Yet lawmaking, too, should increase uniformity in lower court outcomes: by elaborating rules that lower court judges must follow, appeals courts reduce the discretion of those judges and promote uniformity across their decisions. Scholars have debated both to what degree a hierarchical system that establishes precedent is desirable11 and whether the federal judiciary actually functions in this way.12 All agree, however, that when appellate courts elaborate on legal rules, they should guide lower courts, at least to some degree, and lead to greater uniformity.13 The BIA performs this lawmaking function within the Executive Office for Immigration Review (EOIR) by publishing select opinions and, in unpublished opinions, by reviewing immigration judges decisions for their compliance with the BIA s published decisions. If the BIA successfully sets and enforces policy, its review of immigration judges decisions should reduce inconsistency by bringing the decisions in line with the policy the BIA has set. No matter whether immigration appeals exist to set policy or to correct errors, they should promote uniformity across immigration judges decisions. Just as theories of appeal imply that a legal hierarchy should promote uniformity, so too do theories of administrative adjudication imply that agency appeals bodies should make outcomes more uniform. In a seminal article, Jerry Mashaw set out three competing models of administrative justice.14 Uniformity in outcomes is an important goal of administrative 185, (2007) (noting that uniformity is a central element of the rule of law while acknowledging that inconsistency in application of the law due to luck cannot be eliminated from a court system). 11 Compare Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 TEX. L. REV. 1, 16 (1994) ( The lower courts are merely intended to facilitate universal access to the Court s edicts. ), and Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817, (1994) (noting that while arguments in favor of using judicial hierarchy to create uniformity across lower courts are almost universally accepted, they are based on several different rationales), with Pauline T. Kim, Lower Court Discretion, 82 N.Y.U. L. REV. 383, 442 (2007) (arguing that because legal rules may sometimes be indeterminate and social needs require flexibility in the application of legal rules, lower courts do not always need to be bound by appellate court pronouncements). 12 See Donald R. Songer et al., The Hierarchy of Justice: Testing a Principal Agent Model of Supreme Court Circuit Court Interactions, 38 AM. J. POL. SCI. 673, (1994) (reviewing a set of circuit court search and seizure cases and determining that the circuit courts often, but not always, follow Supreme Court precedent). 13 See Kim, supra note 11, at 441 (accepting, with reservations, that economy and uniformity... are served by obedience to hierarchical precedent ). 14 Jerry L. Mashaw, Conflict and Compromise Among Models of Administrative Justice, 1981 DUKE L.J. 181.

7 2016] The Failure of Immigration Appeals 1183 review regardless of which model one accepts. The first model the one most prominent in constitutional due process doctrine considers error avoidance the central purpose of administrative adjudications.15 Mashaw calls this model, which ignores the inherent discretion given to adjudicators, the bureaucratic rationality model.16 He contrasts this prominent model with two others: the professional treatment and moral judgment models.17 The professional treatment model compares adjudicators to social workers or doctors professionals whose goal is to treat and help the claimant.18 The moral judgment model recognizes that the discretion granted to adjudicators requires them to exercise ethical as well as factual judgment.19 The failure of the BIA to make outcomes more uniform across judges is troubling for all three of these models of administrative justice. The bureaucratic rationality model requires consistent application of rules to facts and hierarchical control of the decisionmaking process;20 large disparities across judges, uncorrected by the BIA, undermine that goal. The professional treatment model suggests an interpersonal decision structure, but consistency of outcomes is no less important; Mashaw contends that a professional treatment model can only be successful in the context of highly unified professional norms and skills.21 Large disparities in outcomes across judges facing similar cases suggest a lack of professional unity. Finally, large disparities that are left uncorrected after review are perhaps most disturbing for the moral judgment model, which is based on the neutral application of commonly held moral principles. 22 Uniformity in such legal ethical judgments is a central element of the rule of law. These theories of appeal and administrative adjudication suggest that immigration appeals should make both legal and factual decisions more uniform. If some immigration judges consistently make errors either in favor of the government or in favor of immigrants then appeals to the BIA and courts of appeals should increase consistency across judges on both legal and factual questions.23 If appeals courts make policy, they should similarly bring immigration judges legal and factual determinations in line with that policy. 15 Id. at Id. 17 Id. at 186, Id. at Id. at Id. at Id. at Id. at 189; see also id. at 188 ( [T]he goal of a moral-judgment model of justice... [is] factually correct applications of previously validated legal norms. ). 23 Immigration judges make three main types of decisions, all of which should be made more uniform by appellate review. First, immigration judges decide whether a respondent is removable. 8 U.S.C. 1229a(a)(1) (2012). This determination usually raises legal questions, such as whether a

8 1184 University of Pennsylvania Law Review [Vol. 164: 1177 Of course, the deference that the BIA and the courts of appeals owe to immigration judges constrains their ability to promote uniformity. Although normative theories broadly agree that appeals should promote uniformity, the responsibility to promote uniformity is more central for within-agency appeals bodies than for Article III courts. Scholars and judges continue to debate how much deference Article III courts should grant to legal decisions and findings of fact in administrative adjudications.24 I do not enter that debate, but rather accept the broad consensus, among academics and courts, that within-agency appeals bodies should defer less than Article III courts to the decisions of administrative judges.25 The standards of review applied by the BIA and the federal courts of appeals in immigration cases reflect this distinction. The BIA reviews questions of law de novo and reviews immigration judges findings of fact for clear error.26 By contrast, courts of appeals must affirm findings of fact that are supported by substantial evidence: [T]he agency s factual findings are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. 27 Moreover, the REAL ID Act of stripped the circuit courts of jurisdiction to review denials of several forms of discretionary particular state crime fits the federal definition of an aggravated felony. See id. 1101(a)(43) (including within the definition of aggravated felony the state crime equivalents of enumerated federal offenses). Second, immigration judges decide whether respondents are eligible to apply for various forms of relief. Id. 1229a(c)(4)(A). These decisions, too, raise largely legal questions for example, the commission of an aggravated felony precludes most forms of relief. See, e.g., id. 1229b(a)(3) (permitting cancellation of removal for respondents only if they have not been convicted of an aggravated felony). Finally, immigration judges make discretionary factual determinations when deciding whether to grant relief. Id. 1229a(b)(1). For all of these types of decisions, harsher immigration judges are more likely to err on the side of denying relief and affirming removability, and more generous immigration judges more likely to err in the opposite direction. An appeals system that promotes uniformity should therefore reduce disparities across immigration judges both for decisions related to removability and decisions related to relief. 24 See, e.g., Louis L. Jaffe, Judicial Review: Substantial Evidence on the Whole Record, 64 HARV. L. REV. 1233, 1261 (1951) (reading cases interpreting the standard of review for findings of fact as properly establishing an area of administrative discretion); Robert Kramer, The Place and Function of Judicial Review in the Administrative Process, 28 FORDHAM L. REV. 1, 11 (1959) (endorsing substantial judicial deference to administrative action, limiting review to where its merits clearly outweigh its disadvantages ); Cass R. Sunstein, On the Costs and Benefits of Aggressive Judicial Review of Agency Action, 1989 DUKE L.J. 522, 536 (emphasizing the difficulty of assessing the strengths and weaknesses of robust judicial review of agency action). 25 See, e.g., Kramer, supra note 24, at 78 ( An agency is not an inferior tribunal or a lower court judge, but rather an autonomous body, applying specialized knowledge and experience to regulate areas demanding flexibility and complex judgments. Courts cannot and should not be made to guarantee the correctness of every agency decision. ) C.F.R (d)(3)(i)-(ii) (2015). 27 Huo Qiang Chen v. Holder, 773 F.3d 396, 403 (2d Cir. 2014) (quoting 8 U.S.C. 1252(b)(4)(B)). 28 REAL ID Act of 2005, Pub. L. No , 119 Stat. 302 (codified in scattered sections of 8 U.S.C.).

9 2016] The Failure of Immigration Appeals 1185 relief29 as well as findings of fact underlying the removal orders of immigrants convicted of certain crimes. The courts of appeals retain the authority to review legal and constitutional questions,30 but the legal conclusions of the BIA are often entitled to deference.31 In other words, courts of appeals are more deferential to immigration judges decisions than is the BIA with respect to both questions of law and questions of fact. One would therefore expect the courts of appeals to play a more limited role than the BIA in promoting uniformity, but to play a role nonetheless deference has limits. Despite the importance of uniformity, empirical scholarship has only indirectly investigated whether appeals courts achieve this goal. Scholars have so far focused more on compliance than on uniformity; for instance, a large body of work has found that federal appellate court judges usually (but not always) comply with Supreme Court decisions.32 Research on the effects of court of appeals review of district court patent claim construction has generated somewhat more mixed results: district court judges whose claim construction decisions have been appealed more often in the past are no more likely to avoid reversal in subsequent appeals,33 and, before the establishment of the Federal Circuit, the patent policies of district courts and their circuits appeared to be only loosely connected.34 More recently, Daniel Ho examined 29 See 8 U.S.C. 1252(a)(2)(B) (precluding judicial review of denials of discretionary relief, including cancellation of removal and voluntary departure); id. 1252(a)(2)(C) (precluding judicial review of the removal orders of immigrants convicted of certain classes of crimes); id. 1252(a)(4) (precluding judicial review of Convention Against Torture claims). But see id. 1252(a)(2)(D) (providing that these jurisdiction-stripping provisions do not preclude review of constitutional questions or questions of law on petition for review). 30 See Hamid v. Gonzales, 417 F.3d 642, 647 (7 th Cir. 2005) (noting that the REAL ID Act provides for review of constitutional questions and questions of law in some cases where judicial review would be otherwise precluded); David M. McConnell, Judicial Review Under the Immigration and Nationality Act: Habeas Corpus and the Coming of REAL ID ( ), 51 N.Y. L. SCH. L. REV. 75, 108 n.177 ( ) (listing cases in which courts of appeals dismissed appeals arising from the BIA for lack of jurisdiction due to the REAL ID Act). 31 See Baraket v. Holder, 632 F.3d 56, 58 (2d Cir. 2011) (noting that the Second Circuit applies Chevron deference to the BIA s interpretation of the Immigration and Nationality Act in published, precedential opinions); cf. Esparza-Rodriguez v. Holder, 699 F.3d 821, (5th Cir. 2012) ( We give Chevron deference to the BIA s interpretation of the term moral turpitude and its guidance on the general categories of offenses which constitute [crimes involving moral turpitude], but we review de novo the BIA s determination of whether a particular state or federal crime qualifies as a [crime involving moral turpitude]. ). 32 See, e.g., Sara C. Benesh & Malia Reddick, Overruled: An Event History Analysis of Lower Court Reaction to Supreme Court Alteration of Precedent, 64 J. POL. 534, 536 (2002) ( [L]ittle evidence of outright defiance has been found in the Court of Appeals. ); Donald R. Songer et al., supra note 12, at (finding that although circuit judges sometimes indulge their own preferences, they respond strongly to Supreme Court changes in search and seizure policy). 33 David L. Schwartz, Practice Makes Perfect? An Empirical Study of Claim Construction Reversal Rates in Patent Cases, 107 MICH. L. REV. 223, (2008). 34 See Lawrence Baum, Responses of Federal District Judges to Court of Appeals Policies: An Exploration, 33 W. POL. Q. 217, 223 (1980) (concluding that while patent validity decisions were

10 1186 University of Pennsylvania Law Review [Vol. 164: 1177 consistency in restaurant food safety scoring over time.35 He compared restaurant inspection and reinspection scores in New York City before and after appeals hearings and found little evidence that appeals hearings increased consistency.36 Finally, an important new book examines the role of the BIA in asylum decisions and makes important contributions to our understanding of the role of the BIA s ideology.37 Because it limits its sample to asylum decisions, however, the book does not address the problem that this Article reveals: the BIA cannot effectively review immigration judges decisions because immigration judges influence whether immigrants find a lawyer and apply for asylum or other forms of relief and whether they eventually appeal. The shortage of empirical scholarship on these issues reflects the complexity of the problem. Uniformity is difficult to measure and there are few large sources of data matching adjudications across levels of review. This Article addresses these difficulties with a measure of one aspect of uniformity cross-judge disparity and a new database that matches all immigration court outcomes to appeals. The results are troubling. Immigrants whose cases were decided by harsher judges are no more likely to appeal and win than immigrants whose cases were heard by more generous judges. II. MEASURING DISPARITY Immigration judges vary dramatically in their relief rates the rates at which they allow immigrants to remain in the United States. To calculate these relief rates, I include not only formal grants of relief such as grants of applications for asylum or cancellation of removal but also other outcomes that allow immigrants to remain in the country.38 An important recent article significantly related between district courts and their courts of appeals, there was a substantial gap between the courts in their decisional tendencies ). 35 Daniel E. Ho, Fudging the Nudge: Information Disclosure and Restaurant Grading, 122 YALE L.J. 574 (2012). For qualitative work on the role of the Social Security Appeals Council, a different administrative review body, see generally JERRY MASHAW ET AL., SOCIAL SECURITY HEARINGS AND APPEALS: A STUDY OF THE SOCIAL SECURITY ADMINISTRATION HEARING SYSTEM (1978); Charles H. Koch, Jr. & David A. Koplow, The Fourth Bite at the Apple: A Study of the Operation and Utility of the Social Security Administration s Appeals Council, 17 FLA. ST. U. L. REV. 199, (1990) (recommending, among other things, that the Appeals Council focus more on policymaking and slow its review of administrative law judges decisions, allowing it more time to correct errors). 36 Ho, supra note 35, at See BANKS MILLER ET AL., IMMIGRATION JUDGES AND U.S. ASYLUM POLICY (2015) (testing hypotheses about the BIA s role in error correction and policy formulation using a sample of only asylum cases). 38 The most important of these other outcomes is the termination of a case. Termination occurs when the immigration judge concludes that the government did not show by clear and convincing evidence that the immigrant is in the country illegally (i.e., that the immigrant is inadmissible or deportable). See 8 U.S.C (2012) (listing grounds of inadmissibility); id (listing

11 2016] The Failure of Immigration Appeals 1187 and book quantified and began to explain disparities in asylum grant rates.39 This Article builds on that work by showing that immigration judges not only grant relief at different rates, but also affect immigrants decisions about whether to apply for relief (such as asylum) in the first place and influence immigrants decisions about whether to appeal. These disparities in case management prevent the BIA from reviewing a representative sample of cases, hobbling the appeals process and preventing it from promoting uniformity. Disparities across immigration judges are large and highly statistically significant: the average standard deviation of judge relief rates within the nineteen largest courts between 1998 and 2004 was approximately nine percentage points.40 This means that for an average court, approximately one third of immigrants have their cases decided by judges either nine percentage points harsher or nine percentage points more generous than the court average. As shown in Figure 1 below, these disparities are many times larger than disparities that would arise purely by chance and are more than three times larger than disparities across federal judges in decisions about whether to send a criminal defendant to prison. Figure 1 shows three distributions: the actual distribution of immigration judge relief rates; the actual distribution of federal judge decisions about whether or not to send a defendant to prison;41 and a simulated distribution of immigration judge decisions in which all judges share the same relief rate and the only deviations from the mean are caused by chance.42 Immigration court disparities are large in both absolute and relative terms. grounds of deportability). In these cases, the immigrant need not be granted relief to remain in the country; instead, the government s case that she is here illegally is simply terminated. 39 See generally JAYA RAMJI-NOGALES ET AL., REFUGEE ROULETTE: DISPARITIES IN ASYLUM ADJUDICATION AND PROPOSALS FOR REFORM (2009) [hereinafter RAMJI-NOGALES ET AL. (2009)]; Jaya Ramji-Nogales et al., Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295 (2007) [hereinafter Ramji-Nogales et al. (2007)]. 40 See infra Figure To make this distribution visually comparable, I used the standard deviation calculated by Yang, supra note 1, at 32, and simulated a normal distribution with that standard deviation and a mean of zero. Yang suggests that federal judge rates are approximately normally distributed. 42 For each judge, I simulated a relief rate from a binomial distribution based on her court s mean and the actual number of cases she heard during the study period.

12 1188 University of Pennsylvania Law Review [Vol. 164: 1177 Figure 1: Immigration Court Disparities Compared43 Do these disparities reflect real differences across judges? Perhaps judges decide similar cases similarly but have different relief rates because they hear different types of cases. To address this objection, previous work on disparities in immigration court has relied on the immigration courts own assertion that cases are randomly assigned to judges.44 In the Appendix, I show that cases are not in fact randomly assigned likely because cases arrive on dockets in clusters but that assignment appears arbitrary nonetheless: the merits of the cases do not appear to vary systematically from judge to judge. To be confident that this is accurate, in the Appendix, I replicate these 43 Estimates of immigration judge relief rates include fixed effects and several controls to adjust for differences across immigration courts and caseloads. 44 See U.S. GOV T ACCOUNTABILITY OFFICE, GAO , EXECUTIVE OFFICE FOR IMMIGRATION REVIEW: CASELOAD PERFORMANCE REPORTING NEEDS IMPROVEMENT 17 (2006), [ ( Within each immigration court, newly filed cases are generally assigned to immigration judges through an automated process; however, some flexibility exists. ). The Report goes on to explain that the random assignment of immigration judges may be modified to correct inequities that occurred in the number and type of cases that were assigned to a judge by the automated system, as well as to ensure that the same immigration judge hears an immigrant s case if the immigrant previously had a case before that judge. Id. Finally, an immigration judge may not be assigned to a case if she already has a heavy caseload. Id.

13 2016] The Failure of Immigration Appeals 1189 measures of cross-judge disparities for a subset of time periods and courts in which assignment appears to have been random.45 A. Data The conclusions of this Article hold for the full database of all nondetained immigration proceedings over the last two decades. For the results presented in the body of the Article, however, I have restricted the sample to exclude cases decided during periods of legal change and cases that were not yet resolved in Data come from a Freedom of Information Act request to the EOIR that was honored in March The database contains records of all immigration court adjudications that were initiated between the early 1990s and February 28, I concentrate on nondetained cases only the cases in which immigrants were never taken into custody at any point in their proceedings. I exclude detained cases because they are scheduled separately and present different issues.46 For example, a continuance in a nondetained case simply gives the immigrant more time; in a detained case, a continuance lengthens the immigrant s detention, which could encourage her to agree to deportation. To construct the sample, I began by narrowing the database to cases in which the Notice to Appear was issued between January 1, 1998, and August 31, This was a conservative decision made for two reasons. First, some cases take up to ten years to resolve. I therefore chose a subset of cases for which all appeals had been exhausted for the overwhelming majority of cases. Second, immigration law changed significantly with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,47 which affected cases initiated after April 1, I avoided the period of change after its passage by excluding cases in which the Order to Show Cause was issued before See infra Appendix, Section A. 46 The two types of cases are scheduled separately and, in many courts, different judges are assigned to the nondetained and detained calendars. The detained calendar also implicates two doctrinally separate but practically connected processes: bond and merits determinations. When an immigration judge grants bond, an immigrant s chances of prevailing on her merits claims may increase. For suggestive observational evidence along these lines, see Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. PA. L. REV. 1, 50 fig.14 (2015) (reporting that from 2007 to 2012, immigrants who were never detained or were released from detention were drastically more successful in their cases than immigrants who were detained). Empirically, this makes it difficult to identify a judge s relief rate, since that rate may depend on the judge s doctrinally separate bond determination. Moreover, granting bond often sends the case to the nondetained calendar and therefore to a different judge. A high bond grant rate may therefore artificially lower a judge s relief rate by clearing meritorious cases from her docket. 47 Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No , 110 Stat See Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 597 (9th Cir. 2002) ( [I]f an alien s case is commenced after April 1, 1997, it appears to be controlled by the new, permanent provisions of the [Illegal Immigration Reform and Immigrant Responsibility Act].... ).

14 1190 University of Pennsylvania Law Review [Vol. 164: 1177 From among the nondetained cases between 1998 and 2004, I kept only those from the largest nineteen immigration courts. I narrowed the data set further by excluding all cases in which an immigrant faced proceedings before more than one judge; most of these were cases in which an immigrant was initially detained and later released.49 Next, I removed all cases for which the judge was not identified, as well as cases heard before judges who heard fewer than 300 cases in a single immigration court.50 This final step left a data set of 410,875 cases.51 Table 1 below shows the number of cases after each successive sample restriction. Table 1: Sample Restrictions Sample Restriction Remaining Cases Total Cases 4,880,686 Cases Heard Before One Immigration Judge Only Cases with Consistent Detention Information Nondetained Cases Only 4,097,761 4,094,256 2,005,761 Cases Initiated January 1, 1998 August 31, ,087 Cases from 19 Courts with More Than 7000 Cases 425,652 Cases from Immigration Judges Who Heard at Least 410, Cases B. Measuring Harshness To measure how much judges differ in their harshness, I start by calculating judges relief rates the percentage of cases in which they allow an immigrant to remain in the United States. I then calculate the standard deviation of those relief rates within courts. When relief rates within the same court vary more, the standard deviation is larger. In order to include control variables and to generate a confidence interval, I use a random effects model, described in detail in Appendix, Section B, infra, that is similar to the model used in Yang s study on sentencing disparities.52 That measure of disparity retains the same interpretation as the simpler one: it is equivalent to the standard deviation of the relief rates within each court, averaged across all 49 Judge change can also occur if the venue changes, if a case has to be calendared urgently and the initial judge s calendar is full, or if a judge leaves a court. 50 These were likely judges visiting from another immigration court or judges who began their terms shortly before the end of the study period. 51 For the full sample of nondetained cases that spanned two decades, I kept all nondetained cases from judges who heard at least 300 cases. The result is a data set with 1,946,239 observations. 52 See Yang, supra note 1.

15 2016] The Failure of Immigration Appeals 1191 nineteen courts, accounting for differences across courts and other control variables.53 This standard deviation is nine percentage points, meaning that about one third of immigrants had their cases decided by judges whose relief rates were at least nine percentage points below or above the court mean.54 In a court in which 30% of immigrants obtained relief, this level of disparity meant that the luckiest 15% of immigrants, assigned to generous judges, were twice as likely to avoid deportation as the unluckiest 15%. One might expect the appeals process to temper this inconsistency; Part III shows that it does not. III. APPEALS Normative theories of administrative appeal imply that the appeals process should make immigration judges decisions more uniform, either by correcting errors or by setting precedent in areas of disagreement.55 After the immigration judge makes a final decision ordering an immigrant removed or granting relief,56 the case may proceed through two levels of review. First, either the government or the immigrant may appeal to the BIA.57 Then, if the immigrant loses before the BIA, she may petition for review of the decision by a circuit court of appeals.58 I find that neither level of appellate review substantially increases uniformity across immigration judges decisions A measure of disparity should be easy to interpret, and it should include a confidence interval. Ramji-Nogales et al., whose important work revealed the extent of disparities in asylum adjudication, suggest two different measures of disparity. Their first measure compares judges asylum grant rate to the national mean. Ramji-Nogales et al. (2007), supra note 39, at As they acknowledge, that measure does not account for cross-court differences in the application pool. Their second measure compares judge relief rates to mean rates within courts: they measure the percentage of judges whose grant rates are 50% below or above the mean grant rate. Id. at This measure usefully takes into account cross-court differences, and it is easy to interpret, but it is sensitive to the level of the court mean. For example, in a court with a mean 20% grant rate, the 50% difference would correspond to a ten percentage point difference, but in a different court with a 40% grant rate, the same 50% difference would correspond to twice the percentage point difference in the first court. The standard deviation measure lacks this sensitivity, and the random effects model allows me to produce confidence intervals, quantifying the statistical uncertainty in the estimates. 54 The 95% confidence interval for this standard deviation spans 8.3% to 10.1%. 55 See supra notes and accompanying text U.S.C. 1229a(c)(1)(A) (2012) C.F.R (a) (2015) U.S.C. 1252(a)(5). The Attorney General can also review BIA decisions but does so rarely. See Lindsey R. Vaala, Bias on the Bench: Raising the Bar for U.S. Immigration Judges to Ensure Equality for Asylum Seekers, 49 WM. & MARY L. REV. 1011, (2007) ( Although the Attorney General possesses the authority to review individual cases after they pass through the Immigration Courts and BIA, the Attorney General rarely exercises that power. ). 59 In this Part, as in the rest of the Article, I report results for the period, but all of the results in this part the Article s key empirical contributions also hold for the whole period of the database, from the early 1990s to I do not report them here because they may be biased by the exclusion of some recent cases that have not yet been completed. For example, some cases initiated in 2010 may already have led to outcomes, especially if they were heard by harsh judges. If

16 1192 University of Pennsylvania Law Review [Vol. 164: 1177 A. The Board of Immigration Appeals If the BIA counteracts cross-judge disparities and promotes the uniform application of the law, the data on appeals and reversals should display one or both of two patterns. First, the BIA should reverse the relief decisions of generous judges more often than those of harsh judges, and reverse the removal decisions of harsh judges more often than those of generous judges. Alternately, or in addition, litigants may anticipate the BIA s consistencyenhancing effect. In that case, immigrants should appeal the removal orders of harsh judges more often than those of generous judges, and the government should appeal the relief grants of generous judges more often than those of harsh judges. Most importantly, the overall effect of the appeals process the combined effect of more filings and higher reversal rates should be to reduce disparities. In fact, however, the overall effects of appeals are asymmetric: the BIA is more likely to reverse the decisions of generous judges when the government appeals, but is not more likely to reverse the decisions of harsh judges when immigrants appeal.60 Of course, the BIA may affect outcomes not only by reversing decisions, but also by influencing litigants decisions as to whether to appeal. A full account of the appeals process therefore requires describing for both immigrants and the government s appeals the filing decisions of the litigants, the outcomes before the BIA, and the combined effect of the two.61 patterns in cases are changing over time, then excluding cases that take longer may bias the results. The consistency of the patterns for the smaller and larger data sets, however, should increase confidence that these patterns are not spurious. 60 I categorized an immigrant s appeal as successful in obtaining reversal if the BIA s decision is described in the database as Remand, Sustain, Temporary Protected Status, or Termination. Of course, in a subset of the remanded cases the immigrant may eventually be removed; I ignored that possibility in order to focus on the BIA s behavior. In considering appeals, I included only case appeals, which account for more than 70% of all appeals. I excluded motions submitted to the BIA asking it to reopen a case since these motions often reflect changed circumstances rather than an argument that the immigration judge erred. In the relatively uncommon cases in which there was more than one appeal, I considered only the last appeal. In modeling immigrants decisions to appeal, I included only cases in which the immigration judge, before any appeal, entered an order of removal or voluntary departure. Even though immigrants often waive appeal when they are granted voluntary departure, I included voluntary departure for two reasons. First, some immigrants may appeal the denial of a different form of relief when they are granted voluntary departure. Second, I wanted to capture the behavior of judges who encourage immigrants to accept voluntary departure early in their proceedings and therefore not to appeal. In modeling the government s decision to appeal, I included only immigration judge decisions allowing the immigrant to stay. 61 I am grateful to Ingrid Eagly and Steven Shafer for pointing out that a majority of nondetained respondents who are ordered removed without lawyers are removed in absentia that is, without the respondent being present at the hearing. In order to be sure that these in absentia removals are not the source of these patterns on appeal, I have replicated the appeals results excluding all cases in which a respondent was removed in absentia at the first hearing. Excluding these cases actually strengthens the effect of immigration judges patience on appeals outcomes.

17 2016] The Failure of Immigration Appeals 1193 First, a removal order from a harsher judge makes immigrants more likely to file an appeal, but only if they have a lawyer. More than half of all immigrants with lawyers appeal if they lose before the immigration judge, while only 3% of immigrants without lawyers appeal.62 Moreover, immigrants with lawyers are sensitive to the harshness of the immigration judges, whereas immigrants who file appeals pro se are not. The left panel of Figure 2 shows a scatterplot of judges relief rates and the appeal filing rates from their decisions. When immigrants have lawyers, they are more likely to appeal harsh judges decisions. But when immigrants lack lawyers, they rarely appeal, regardless of how harsh their immigration judge was. In Figure 2, the dashed line, which shows represented immigrants, slopes downward: the higher the immigration judge s relief rate, the less likely that a represented immigrant will appeal a removal order. By contrast, the solid line, which shows unrepresented immigrants, is nearly flat: the immigration judge s harshness does not affect whether immigrants without lawyers decide to appeal. Second, as expected, the government, which always has a lawyer, more often appeals the relief decisions of generous judges. The line in the right panel of Figure 2 slopes upward, showing that the higher the immigration judge s relief rate, the larger the chance that the government will appeal. However, government appeals are rare no matter what the immigration judges decide: they only appeal in about 3% of cases in which the immigration judge grants the respondent permission to remain in the United States. Figure 2: Representation, Relief Rates, and Appeal Filings 62 I categorized an immigrant as having a lawyer if a lawyer entered an appearance at any time during her case.